Deadlock in the Negotiation Rooms to Protect Global Oceans

For decades, western multinational companies have been profiting by exploiting plant, animal, or microbial genetic resources obtained from less developed countries. Take the neem tree, for example. Since the 1990s, international companies have registered more than 70 patents on products derived from India’s “tree of life.” Yet these patents have prohibited local people from using these trees (as they had for centuries) to make cosmetics, fertilizers, and medicines.

International companies have now turned their eyes to the high seas in a new hunt for genetic resources. Concerned they will be left out of the potentially profitable patents once again, developing nations are demanding equitable use and benefit sharing of genetic resources in ongoing global ocean treaty negotiations.

Recent discussions have been difficult. In August 2022, delegates convened at the United Nations headquarters for the fifth intergovernmental negotiations (IGC5) on a legally binding treaty to conserve marine biological diversity of areas beyond national jurisdiction (BBNJ). Yet after two decades of discussions on this Global Ocean Treaty, these talks broke down over a lack of consensus on the core issue of benefit sharing of marine genetic resources (MGRs).

While some civil society groups expressed disappointment about the stalled negotiations, many environmentalists and negotiators remain optimistic about clinching the treaty in the next round of talks in early 2023. Since the key to doing so will be for developing and developed country blocs to find a compromise on MGRs, China could play an important role in bridging the gap.

The MGR Chokepoint

Developing countries’ demands for fair access to—and benefits from—marine genetic resources on the high seas have met with resistance from developed countries, which have realistic concerns that relevant monitoring might impede scientific research. Neither bloc has put forward a satisfactory solution so far.

Scientists still have limited knowledge about the potential for these resources. Yet multinational companies’ past profits on Indigenous knowledge have led Global South countries to work with China in a coalition to defend their access to MGRs on the high seas.

A series of technical barriers have prevented establishing a workable system for MGRs benefit sharing. Some proposed mechanisms, such as prior cruise notification, can delay or even hamper marine scientific research. So the delegates of the Group of G77 plus China have suggested that the historical practices of The Nagoya Protocol on Access and Benefit-sharing of Genetic Resources under the Convention of Biodiversity could be borrowed for the Global Ocean Treaty. One possible drawback? Some research suggests that developing countries haven’t effectively benefited from the Nagoya Protocol.

The disagreement between the EU and the G77 plus China over benefit sharing of MGRs also slowed down final agreements on area-based management tools, including marine protected areas (MPAs); standards for environmental impact assessments (EIA) for activities on the high seas; and capacity-building and the transfer of marine technology.

Undermining Trust With a Game of Chicken

That both sides in MGR negotiations have taken extreme bargaining positions—and then shift the burden of compromise to the other side—is a worrying trend that has stalled MGR negotiations. The G77 plus China has questioned the sincerity of developed country blocs to clinch this treaty, citing their longtime neglect of the Global South’s demands. The EU engaged in tit-for-tat retaliation by naming China as a major impediment to reaching the Global Ocean Treaty in a press release issued after IGC5.

Yet this game of chicken is not the full extent of the problem. Distrust also has accumulated due to a lack of trust-building conversations between the parties. During the pandemic, IGC4 was postponed for almost two years. National delegates could only work remotely, with no chance to conduct in-person meetings or have hallway discussions of issues.

As a major fishing power and the biggest developing country, China is clearly aware of its power. The agreement being negotiated now cannot pass without the G77 plus China. Members of the Global South believe that the EU and its allies have no choice but to compromise.

Yet developed country blocs believe that developing countries must fall in line if they don’t want to be blamed for failing to protect the world’s oceans. As both sides wait for the other to blink, they have postponed making substantive tradeoffs, and have left too much to negotiate in too little time.

In August, the treaty president set up a number of small working groups to break the impasse, seeking more nuanced discussions on contested articles. Yet smaller national delegation groups — and even China (whose delegation is smaller than usual due to its stringent COVID travel policy) — have complained about the difficulties in working this way. And the results have brought surprise, especially when a refreshed draft text of the agreement released before the second week of the August negotiations included articles agreed within small working groups, but not fully discussed in the main conference rooms.

Indeed, developing countries have found this process to be disrespectful of their larger demands. At the final plenary sessions, a Chinese delegate opined that the small working group product should not be used as the basis of further discussion because it did not reflect the viewpoints of all states. While small working groups can be a useful approach to speed up negotiations, their use must be more transparent and better coordinated.

Bridging the Gap

Finding agreement on the treaty will require major country blocs to stop their brinkmanship and work together for a consensus-based solution. They must prioritize global ocean conservation over national interests.

As a major marine power, China is uniquely placed to help bridge the gap around MGR issues. China’s national interests are simultaneously close to those of developed country blocs, while also supportive of the demands of its partners in the Global South. Reconciling the differences around MGRs could make China a leader in global ocean governance and support its own interests in developing MGR patents.

Despite the overall lack of consensus, IGC5 did make progress on MGRs. Many developed countries expressed openness to monetary benefit sharing, and small group discussions explored useful ideas on doing so without hampering research or embracing costly tracking systems.

Developed country blocs should use the intercessional period to proactively include the Global South into the dialogues and find common ground. After all, the treaty will be a mere scrap of paper if it is produced without the approval of major fishing countries — including China. Any failure to find agreement will be shared by both sides in the negotiations.